I am writing on behalf of Human Rights Watch to express our concern that the Saudi-led coalition’s investigative mechanism, the Joint Incidents Assessment Team (JIAT), is failing to meet international standards regarding transparency, impartiality, and independence, and to seek further information regarding JIAT’s ongoing investigative work.

Since March 26, 2015, Human Rights Watch has documented 17 coalition attacks involving internationally banned cluster munitions and 61 apparently unlawful coalition airstrikes that caused civilian loss of life and property, including attacks that may be war crimes. The United Nations, Amnesty International, and Mwatana, a leading Yemeni human rights organization, have documented dozens more apparently unlawful coalition airstrikes.

As you are aware, states parties to an armed conflict have an obligation to investigate alleged war crimes committed by their forces or on their territory, as well as to prosecute suspected perpetrators of war crimes in fair trials, and provide reparations for victims of violations.

Since August 2016, JIAT has released the initialresults of investigations into 14 coalition attacks, releasing about a paragraph on each strike. While JIAT recommended the coalition pay reparations to victims of three of these attacks and that appropriate action be taken against officers involved in two, Human Rights Watch is unaware of any concrete steps taken to put a reparation process in place or to hold individual officers accountable for possible war crimes. JIAT’s methodology, including its verification of information, the choice of incidents investigated, investigations of acts by non-coalition parties to the conflict, and the status of its recommendations vis-à-vis coalition members, has not been transparent. While the coalition admitted using cluster munitions, claiming to have done so in compliance with international law, to date, JIAT does not appear to have examined a single attack involving cluster munitions.

In 10 of the 14 strikes JIAT investigated, JIAT absolved the coalition of responsibility for alleged violations, often reaching different factual and legal conclusions than the UN or human rights organizations that had documented the same strikes. Below, we outline factual and legal discrepancies between JIAT and Human Rights Watch in five strikes that both Human Rights Watch and JIAT examined, as well as questions for JIAT regarding these discrepancies and JIAT’s overall work. Other organizations, including Amnesty International and Medecins Sans Frontieres (MSF), have also come to different conclusions than JIAT following their own inquiries into other strikes JIAT investigated.

Factual and Legal Discrepancies

October 8, 2016, Great Hall Funeral Ceremony, Sanaa

After the October 8 bombing of a funeral hall in Sanaa, coalition sources initiallydenied responsibility for the attack. But the following day the coalition announced it would investigate the incident with support from the US. JIAT “examined all related documents, and assessed evidence, including the rules of engagement (ROEs) and the testimonies of concerned personnel and those involved in the incident,” ultimately concluding that a party to the conflict affiliated with Yemeni President Abdrabbuh Mansour Hadi passed incorrect intelligence to a coalition aircraft and “insisted that the [great hall] be targeted immediately.” JIAT went on to note that the Yemen air operations center directed the aircraft to carry out the mission “without obtaining approval from the Coalition command... and without following the Coalition command’s precautionary measures to ensure that the location is not a civilian one that may not be targeted.” JIAT recommended that appropriate action be taken against officials responsible, compensation be offered to the victims, and the coalition’s rules of engagement reviewed. A week later, the coalition accepted the results of JIAT’s investigations and announced it had begun to implement the recommendations.

Human Rights Watch concluded that regardless of the faulty intelligence, coalition forces, both in the Yemen air operations center and Riyadh, either knew or should have known that any attack on the hall would result in massive civilian casualties. The date and place of the funeral ceremony was publicly available, and the hall would have been known to be crowded with hundreds of civilians at the time of the attack. Human Rights Watch interviewed 14 witnesses to the attack and 2 men who arrived at the scene immediately after the airstrike to help with rescue efforts, among other sources, and reviewed video and photos of the strike site and weapons remnants. The strike was an unlawfully indiscriminate or disproportionate attack on civilians and civilian objects in violation of the laws of war. The great hall appears to have been attacked willfully, that is deliberately or recklessly, which would be a war crime, and those involved should be criminally investigated. For more, please see: https://www.hrw.org/news/2016/10/13/yemen-saudi-led-funeral-attack-apparent-war-crime.

March 15, 2016, Mastaba Market, Hajja

After investigating a March 15 attack on a market in Hajja, JIAT concluded – without providing any explanation of its methodology – that the attack complied with the laws of war, as the strike was “based on solid intelligence asserting that a large gathering of Houthi armed militia (recruits), and that the gatherings were near a weekly market, which does not have any activity except on Thursdays.” The strike occurred on a Tuesday, but residents of the area told Human Rights Watch that there were stalls and shops open every day of the week. JIAT went on to note that “the claiming party did not provide proof of the claims [of] civilian casualties.”

Human Rights Watch’s findings, as well as those of the UN, which sent a human rights team to visit the site the day after the attack, drastically differed from JIAT. Human Rights Watch conducted on-site investigations on March 28 and interviewed 23 witnesses to the airstrikes, as well as medical workers at two area hospitals that received the wounded. Whereas JIAT appears to conclude there were no civilian casualties, Human Rights Watch and the UN found that the two airstrikes on a crowded market killed at least 97 civilians, including 25 children. Two Mastaba residents told Human Rights Watch that many members of their extended families had died – one lost 16 family members, and the other 17 – and a local clinic supported by MSF received 45 wounded civilians from the market, 3 of whom died.

While the strike may have also killed about 10 Houthi fighters and a Houthi military checkpoint manned by two or three fighters was located about 250 meters north of the market, the strikes caused indiscriminate or foreseeably disproportionate loss of civilian life, in violation of the laws of war. The Houthis’ possible use of a building in the market as a barracks would have amounted to failure to take all feasible precautions to protect civilians under their control from the effects of attacks, but not have justified the coalition airstrikes as carried out. On March 16, the day after the attack, the Saudi military spokesman for the coalition, Gen. Ahmad al-Assiri, said that the coalition targeted “a militia gathering” and that the area was a place for buying and selling qat, indicating the coalition knew the strike hit a civilian commercial area. Such unlawful attacks when carried out willfully are war crimes. For more, please see: https://www.hrw.org/news/2016/04/07/yemen-us-bombs-used-deadliest-market-strike.

February 27, 2016, Nihm Market, Sanaa

After investigating a February 27 airstrike in Nihm, JIAT, which offered no details on the types of evidence examined or sources consulted, concluded that a coalition aircraft providing back-up to local Yemeni forces struck two Houthi “vehicles full of personnel, ammunition and weapons” and that the vehicles were near “a small natives' market adjacent to a [sic] small buildings and tents.” JIAT found that the coalition complied with the laws of war, as only seven people were at the site, “deployed in an uninhabited desert area” under Houthi control.

Human Rights Watch documented the same attack and came to different conclusions after interviewing three local residents, including a local sheikh who arrived at the site 30 minutes after the strike, and a man who said the airstrike killed three of his cousins, two friends, and five others. The local residents said that the vehicles hit in the first strike were carrying civilians. Human Rights Watch found that the first strike hit the cars, which were in the middle of a small, crowded local market, killing at least 10 civilians, including one woman and four children, and wounding at least four more. The second strike landed 150 meters away in a graveyard between 5 and 10 minutes later, causing no injuries. For more, please see: https://www.hrw.org/news/2016/05/04/yemen-war-crimes-not-addressed.

July 24, 2015, Residential Complex in Mokha

After investigating a 2015 airstrike in Mokha, JIAT – without providing any explanation of its methodology – found the coalition had intelligence that four military targets in the area were struck on July 24, 2015, including coastal defense missiles, but that a residential complex was “partly affected by unintentional bombing, based on inaccurate intelligence information.” JIAT did not conclude how many civilians were harmed in the attack, but recommended the coalition provide compensation to victims “after they submit their official and documented claims to the Reparations Committee.”

Human Rights Watch visited the area a day-and-a-half after the attack. Researchers, examined the damage, interviewed workers and residents at the compounds, and visited three hospitals that received victims, concluded the attack was a violation of the laws of war and an apparent war crime. Contrary to JIAT’s conclusion that the complex was “partly affected by unintentional bombing,” Human Rights Watch found that six of nine bombs had hit the main residential compound, completely destroying large sections of it. A seventh bomb hit another, temporary workers’ compound. The two residential compounds housed at least 200 families and the attack killed at least 65 civilians, including 10 children, and wounded dozens more. Human Rights Watch found no evidence of a military objective at the scene of the attack. As such, the attack was unlawfully intentional or indiscriminate. It was an apparent war crime because even if not a deliberate attack on civilians, it was conducted recklessly. For more, please see: https://www.hrw.org/news/2015/07/27/yemen-coalition-strikes-residence-apparent-war-crime.

October 26, 2015, Haydan Hospital in Saada

Brig. Gen. Ahmed al-Assiri initially denied a coalition airstrike hit an MSF-supported hospital in Saada in October 2015. JIAT, which offered no details on the types of evidence examined or sources consulted, concluded the coalition had struck Haydan hospital on October 26, 2015, but that “there was no human damage as a result of the bombing.” JIAT alleged the coalition verified intelligence that a Houthi armed group had gathered in the area, and were using the hospital as a military shelter, making it a military target. JIAT concluded that the coalition should have warned MSF before bombing the building.

Human Rights Watch interviewed the MSF-Yemen country director the night of the strike, and received photos from MSF and other local sources of the MSF-logo painted on the roof and the damage to the building after the strike. In contrast to the JIAT conclusion, Human Rights Watch confirmed that two patients were injured during the evacuation of the hospital after the attack. Additionally, since multiple wards were damaged or destroyed, the only medical facility within an 80-kilometer radius, which received about 150 emergency cases a week, was forced to shut down. MSF had supplied the coalition with the hospital’s coordinates, in addition to painting its name and logo on the roof.

Human Rights Watch found no evidence that the hospital was being used for military purposes. Even if the Houthis were using the hospital as a military barracks, as JIAT alleged, hospitals only lose their protection from attack if they are being used, outside their humanitarian function, to commit “acts harmful to the enemy.” As JIAT acknowledged, even if military forces use a hospital to store weapons or deploy able-bodied combatants, the attacking force must issue a warning to cease this misuse. The attacking force must also set a reasonable time limit for it to end, and attack only after such a warning has gone unheeded. For more, please see: https://www.hrw.org/news/2015/10/27/yemen-coalition-airstrikes-hit-hospital.

Inquiries

Human Rights Watch is continuing to monitor accountability efforts in Yemen and would appreciate answers to the following questions so that we can better understand JIAT’s methodology and ongoing work. We will incorporate these perspectives into our future reporting.

Methodology

Human Rights Watch has documented 78 apparently unlawful coalition attacks in Yemen since March 2015. According to information in the public record, JIAT has only concluded investigations into 5 of these 78 attacks and has investigated no attacks involving the use of banned cluster munitions. Please explain the procedures used to decide which strikes to investigate, a list of strikes currently being investigated, and plans, if any, to investigate the coalition’s use of cluster munitions.

What criteria do JIAT investigators use to determine whether individuals killed or wounded in a strike were civilians? Does JIAT use any assumptions about whether certain profiles are civilians or combatants? If so, where does the burden lie to rebute these presumptions? For example, in the Nihm market attack, JIAT first notes that two transport vehicles containing ammunition and weapons were located near a small market, buildings and tents, and then that “these gatherings” were in an uninhabited area, shown by “important recordings” that only seven people were at the site. Please clarify (i) what recordings are referred to in JIAT’s conclusion; (ii) how JIAT determined there were only seven people at the site, and (iii) if JIAT determined that all seven people were combatants, how it did so?

In the Mastaba market strike, JIAT concluded “the claiming party” did not provide proof of civilian casualties. What sources of evidence does JIAT consider in its investigations? For example, did JIAT consider Human Rights Watch reporting regarding the Mastaba incident in the evidence it examined regarding civilian casualties?

In its investigation into the Haydan hospital bombing, JIAT concluded there was no “human damage.” How does JIAT assess “harm” or “damage” of an attack? Would it include damage to a hospital and its ability to function as a medical facility?

In an August 2016 press release, the Saudi Press Agency stated that JIAT “analyz[es] the information contained in the task report, review[s] the aerial photographs from the post-mission aircraft reports, record[s] videos, schedule[es] daily tasks and report[s]to the JIAT's air control officer.” What access does JIAT have to sources in Yemen, in person or by other means of communication, where airstrikes are being conducted? For example, in the five strikes discussed above, did JIAT interview victims of or witnesses to these attacks? If so, how many?

Compensation, Prosecution, and Remedial Action

In both the Mokha and Great Hall attacks, JIAT recommended the coalition pay reparations to victims of the attacks. Has the coalition began to process reparations payments for victims of the attacks by, for example, providing public information on how victims can summit claims to the Reparations Committee, including contact information, in Arabic? If so, has the Reparations Committee received or begun to process any claims for compensation?

States have an obligation to prosecute individuals who commit war crimes, which are serious violations of the laws of war committed with criminal intent – that is, deliberately or recklessly. Did JIAT determine if any coalition officers acted deliberately or recklessly when carrying out any of the attacks it has investigated, for example, the Mokha and Great Hall strikes?

Does JIAT identify individual officers that were involved in attacks, and has it recommended that any coalition states begin investigations, disciplinary actions or prosecutions against their nationals who may have committed war crimes? In the Mokha and Great Hall attacks, which states nationals were involved, by providing intelligence, fuel, maintenance or munitions, authorizing the strike or carrying out the strike? What are the status of JIAT’s recommendations for each coalition state and non-coalition states taking part in military operations?

Do all airstrikes in Yemen require coalition command permission before being carried out? If not, please clarify the scenarios in which an aircraft would be authorized to carry out a strike without coalition command permission and any past strikes where this has occurred?

What is the status of the review of the coalition’s rules of engagement? JIAT recommended a review of the rules of engagement following the October 8 attack. What, if any, shortcomings have been identified and what, if any, changes made? About 10 days after JIAT released its findings on the Haydan hospital attack concluding the coalition should have warned MSF before striking the hospital, the coalition hit another MSF-supported hospital in Abs. What steps have been taken to ensure the necessary warnings are provided to protected sites the coalition believes are being used to commit acts harmful to the enemy before attacking? Does this include setting a reasonable time period for the facility to end any potential misuse?

Independence, Impartiality and Cooperation with Other Accountability Mechanisms

In September 2016, the UN Human Rights Council passed a resolution laying out two complementary processes for investigations, through the OHCHR itself, strengthened by the allocation of additional human rights experts, or through the Coalition-backed Yemeni National Commission set up by Presidential Decree No. 13 (2015). To what extent, if any, does JIAT cooperate with the Yemeni National Commission or OHCHR? For example, does JIAT seek or share information with either of these bodies?

How does JIAT ensure it works in independence and impartiality? How were the members of JIAT appointed? Please share their names, any relevant legal or military experience and respective positions on the team. Under whose command do active military officers fall?

We ask you to respond to this letter and the inquiries above on or before February 10, 2017 so that we may reflect your response in our upcoming work in a timely manner, including our advocacy at the March 2017 session of the UN Human Rights Council.

If JIAT prepares lengthier reports on the incidents it investigates than the ones available in the public sphere that provide clarifications to some of the questions above, we would be grateful if you could share them with us.

Please do not hesitate to contact Kristine Beckerle, Yemen Researcher, at +1-646-705-2681 or beckerk@hrw.org, should you have questions.

We thank you for your consideration and look forward to your response.